¶2In early 2005, Bouraxis, through an associate, approached
Edlebeck and asked if he would be interested in purchasing two restaurants: one located at 2130 South Kinnickinnic Avenue,
Milwaukee, Wisconsin (“KK Restaurant”) and the second located at 7822 West Capitol
Drive, Milwaukee, Wisconsin.Edlebeck
was interested, and Edlebeck and Bouraxis eventually agreed on a final purchase
price of $2,500,000 with $250,000 to be paid in cash to Bouraxis at closing. When Edlebeck was unable to secure reasonable financing
for the purchase from conventional lenders, Bouraxis agreed to personally
finance the transaction.

¶3Edlebeck met with Bouraxis and Sherburne, Bouraxis’s
attorney, to discuss the details of the proposed sale. At this meeting, Edlebeck informed Sherburne
that he would retain an attorney to represent his interests. Despite Edlebeck’s representation, he did not
retain counsel. In May 2005, Sherburne
delivered a draft of the purchase agreement to Edlebeck, affixing the following
disclaimer to the cover letter: “Attached
for your review and discussion with your counsel is the draft of the purchase
agreement.” Shortly thereafter, Edlebeck
suffered from health problems and the transaction was put on hold.

¶4In late July 2005, Bouraxis again contacted Edlebeck,
suggesting that the parties revive their negotiations. Bouraxis further proposed that Sherburne
prepare the purchase agreement. Edlebeck
agreed, consenting to split Sherburne’s attorney’s fees with Bouraxis. Because Edlebeck had not retained counsel, he
dealt directly with Sherburne. The
parties agree that Sherburne neither told Edlebeck that he was acting as
Edlebeck’s attorney nor did he have Edlebeck sign a retainer agreement.

¶5Upon reviewing a May 2005 draft of the purchase agreement,
Edlebeck sent revisions to Sherburne’s office in August 2005. Later in August, Sherburne’s office sent
Edlebeck a new draft of the purchase agreement, with material, unmarked changes,
favorable to Bouraxis, including converting the transaction into a land
contract. In September 2005, upon
reviewing the new draft, Edlebeck requested that Sherburne make further changes
to the purchase agreement.Edlebeck
admits that Sherburne never responded to Edlebeck’s letter, and therefore,
Edlebeck did not know if Sherburne made the requested changes.

¶6Later in September 2005, Edlebeck met with Sherburne and
Bouraxis to close on the sale.The
parties disagree over whether Sherburne read the purchase agreement to
Edlebeck, discussing the material changes he had made.Edlebeck admits that he did not read the
closing documents prior to signing them. Edlebeck consequently assumed ownership of the
restaurants, and, according to Edlebeck, he operated the restaurants as
Bouraxis had prior to the sale.Edlebeck
also alleges that he operated the restaurants at a loss from the start of the
very first month.

¶7Edlebeck listed the two restaurants for sale in February
2007. In March 2007, Edlebeck began
negotiating a potential sale of the KK Restaurant to a Culver’s Franchise
Systems, Inc. (“Culver’s”) franchisee, Demetrios Dimitropoulos (“Dimitropoulos”).The sale was contingent on Dimitropoulos’s receipt
of approval from Culver’s for that location. Culver’s ultimately declined approval and the
sale fell through.The letter from
Culver’s stated, in its entirety:“Your
proposed site that is located on Kinnickinnic Avenue and Becher Street in
Milwaukee, Wisconsin is not approved for development as a Culver’s®
restaurant.Thank you for your
interest.Please call me when you have
another location to be considered.”

¶8After the sale fell through, Edlebeck became aware that
Bouraxis had held the KK Restaurant subject to deed restrictions, which gave
the previous owner, Burger King Corporation, a right of first refusal and
imposed a restriction on the amount of ground beef that could be sold at that
location. Edlebeck notified Bouraxis of
the conflict, and Bouraxis’s attorneys successfully removed all known deed
restrictions. Despite this setback,
however, Dimitropoulos indicated a continuing interest in purchasing the
property for purposes other than development as a fast food restaurant.

¶9In April 2009, Edlebeck and Bouraxis entered into a
mitigation agreement, which returned the restaurants to Bouraxis.Edlebeck then filed this lawsuit in August 2009,
alleging claims for breach of contract, unfair trade practices under Wis. Stat. § 100.18, and theft by
misrepresentation under Wis. Stat.
§ 943.20 against the Bouraxis Defendants, and claims for professional
negligence and breach of fiduciary duty against the Sherburne Defendants.The complaint also alleged claims for conspiracy
to commit fraud and injury to business pursuant to Wis. Stat. § 134.01 against all of the defendants.

¶10In January 2010, the circuit court entered a scheduling order,
requiring Edlebeck to file “the name, address, resume and written report of
each expert witness who will testify” and “an itemized statement of damages” by
May 5, 2010. The order expressly stated,
in bold lettering, that “[w]itnesses and damage claims not disclosed in full
compliance with this rule will be excluded from trial, unless good cause is
shown.” (Emphasis omitted.)

¶11On May 3, 2010, just prior to the deadline to file his witness
list and statement itemizing his damages, Edlebeck asked for an extension of
time, citing discovery difficulties.The
parties stipulated to the extension of time.Thereafter, Edlebeck filed his first witness list on May 7, 2010, but had
the right to file an amended witness list by June 15, 2010.On June 18, 2010, after the deadline,
Edlebeck filed his amended witness list.He did not file a statement of damages.

¶12At the same time Edlebeck filed his request for an extension of
time on the scheduling order, he filed a motion for summary judgment on his
breach-of-contract claim.Edlebeck
alleged that Bouraxis breached a warranty in the purchase agreement
guaranteeing that the restaurants were free of encumbrances, and that he
suffered injury from the breach when he was unable to sell the KK Restaurant to
Dimitropoulos.In July 2010, following a
hearing on the motion, the circuit court partially granted the motion, finding
that the purchase agreement’s warranty to provide clear title had been breached.However, the court left open the question of
whether Edlebeck had suffered damages caused by the breach.

¶13Following motions to compel and to amend the scheduling order,
the circuit court held a hearing in November 2010, at which the parties aired
numerous discovery grievances.The
circuit court then amended the scheduling order, yet again, permitting Edlebeck
until February 25, 2011, to amend his witness list.On February 28, 2011, after the deadline,
Edlebeck filed his second amended witness list.He still did not file a statement of damages.

¶14On March 11 and March 14, 2011, respectively, both the
Sherburne Defendants and the Bouraxis Defendants moved for summary
judgment.The Bouraxis Defendants’
motion was based, in part, on Edlebeck’s failure to file a statement itemizing
his damages.

¶15On March 24, 2011, in response to the Bouraxis Defendants’
motion for summary judgment, Edlebeck moved for leave to amend the scheduling
order so that he could file a statement of damages. At a hearing on the motion to amend the
scheduling order, Edlebeck’s counsel conceded that the missing statement of
damages had simply been “overlooked.” The
circuit court noted in frustration that Edlebeck’s failure to provide evidence
of damages, despite multiple opportunities and without just cause, unjustifiably
hindered the court’s ability to control its calendar. However, the court permitted Edlebeck to file
the statement of damages, but also reopened discovery for the defendants at
Edlebeck’s expense.On March 31,
2011, Edlebeck finally submitted his one-page statement of damages, claiming
damages totaling $2,866,300. The
statement states, in its entirety:

Pecuniary Damages:

Payments made at closing$250,000.00

Reduction in mortgage$400,000.00

Closing costs$50,920.50

Total amount of cash invested to fund losses

in the operations$1,692,107.30

Accounts payables, taxes and misc.$469,972.20

Total$2,866,300.00

Excluding statutory damages, punitive

damages, attorney’s fees, costs, and interest.

Edlebeck did not attach any
documents to the statement to support the numbers set forth therein.

¶16In May 2011, the circuit court held a hearing on the
defendants’ motions for summary judgment.The court dismissed Edlebeck’s claim for breach of contract against the
Bouraxis Defendants because, while the court had previously concluded that
there had been a breach, Edlebeck had not presented any evidence of damages
flowing from the breach.The court also
found that there was no evidence that the deal to sell the KK Restaurant to
Dimitropoulos fell through because of the deed restrictions.Rather, the court found that all of the
evidence submitted merely reflected that Culver’s failed to approve the
property because of its location.The
court also dismissed Edlebeck’s professional-negligence and
breach-of-fiduciary-duty claims against the Sherburne Defendants, finding,
among other things, that Edlebeck had failed to present evidence from which a
reasonable factfinder could conclude that he had entered into an attorney-client
relationship with Sherburne.

¶17The circuit court permitted the parties to file supplemental
briefs on the remaining claims, and continued the hearing.In his supplemental brief, Edlebeck attempted
to re-argue the breach-of-contract claim already dismissed by the court.In doing so, Edlebeck attached a copy of a
previously undisclosed cancellation agreement with Dimitropoulos, and a previously
undisclosed expert report.

¶18At the continued summary judgment hearing, in June 2011, the
circuit court struck the newly discovered evidence from the record, noting its
frustration with Edlebeck and his counsel, stating:

There have been multiple
extensions of discovery, to give the plaintiff an opportunity to produce
documents, respond to discovery, and to present its case.And now subsequent to the Court actually
deciding the issue, you find a new document.We have a supplemental affidavit from Mr. Dimitropoulos, who everybody
has known about, who could’ve in a deposition, could’ve in an affidavit stated
what’s contained in the document as being true and correct.

….

The theory should’ve been very
clear prior to filing the lawsuit, and yet we continue to go on, we continue to
extend time for discovery, time for disclosure in violation of the scheduling
order, and subsequent to all the briefing that’s filed regarding the motion for
summary judgment.

And then just by miracle Mr.
Ed[le]beck finds a document that’s been sitting in his office since some time
in 2007 or 2008.I don’t find that it’s
done in good faith, and it’s a clear violation of the scheduling order without any
clear justification.

The circuit court went on to
dismiss Edlebeck’s claims for theft by misrepresentation, conspiracy to commit
fraud, and injury to business for various reasons irrelevant to this
appeal.Edlebeck’s Wis. Stat. § 100.18 claim for
unfair trade practices, while surviving this round of summary judgment, was
later dismissed as barred by the statute of limitations.[4]Edlebeck appeals.

¶19Additional facts are included as necessary in the discussion
section.

DISCUSSION

¶20We identify two issues raised by Edlebeck on appeal.First, whether the circuit court erred in
dismissing his breach-of-contract claim against the Bouraxis Defendants for
failure to show damages and for failure to present evidence that the breach
caused any damages; and second, whether the circuit court erred in dismissing
his professional-negligence and breach-of-fiduciary-duty claims against the
Sherburne Defendants for failing to assert facts on which a reasonable finder
of fact could conclude that an attorney-client relationship existed between
Edlebeck and Sherburne.We affirm the
circuit court on both for the reasons stated below.To the extent that Edlebeck attempts to challenge
the circuit court’s decision to dismiss his remaining claims on appeal, to wit,
his claims for theft by misrepresentation, conspiracy to commit fraud, and
injury to business, we decline to review the issues as inadequately
briefed.SeeState v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992).

¶21Our review in cases on appeal from summary judgment is well known.We review the denial or grant of a summary
judgment motion de novo, employing
the same methodology as the circuit court.Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d
816 (1987).The circuit court must grant
and we must affirm summary judgment if the record demonstrates that there is no
genuine issue of material fact and the moving party is entitled to judgment as
a matter of law.SeeWis. Stat.§ 802.08(2).

I.Breach of
Contract.

¶22Edlebeck’s breach-of-contract claim asserted that Bouraxis
breached a warranty in the parties’ final purchase agreement that stated that
the titles to the restaurants were unencumbered when, in fact, the special
warranty deed to the KK Restaurant contained a restriction on the sale of
ground beef products and a right of first refusal in favor of Burger King
Corporation.Edlebeck alleges that he
suffered damages when he was unable to sell the KK Restaurant to Dimitropoulos
because of the deed restrictions.The
circuit court concluded that Bouraxis did breach the contract, in that the
purchase agreement did falsely contain the warranty, but ultimately concluded
that Edlebeck failed to set forth any damages or to present evidence that his
failure to sell the KK Restaurant to Dimitropoulos resulted from the
breach.We need not determine whether
Edlebeck presented evidence that the breach caused his damages because we agree
with the circuit court that Edlebeck has not alleged any damages flowing from
the breach.

¶23In a breach-of-contract action, the plaintiff has the burden of
proving that he “has sustained some injury and must establish sufficient data
from which the [trier of fact] could properly estimate the amount.”Plywood Oshkosh, Inc. v. Van’s Realty &
Constr. of Appleton, Inc., 80 Wis. 2d 26, 31, 257 N.W.2d 847
(1977).Edlebeck has set forth no such
sufficient data here.Edlebeck does not
identify what his damages are, does not point to any foundational documents
asserting his damages, and does not name any expert witnesses who can support
his claim for damages.Furthermore,
nowhere in any of his submissions to this court does he deny the Bouraxis
Defendants’ assertion that Edlebeck’s failure to allege damages attendant to
the loss of the KK Restaurant sale is fatal to his claim.SeeCharolais
Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279
N.W.2d 493 (Ct. App. 1979) (Unrefuted arguments are deemed admitted.).As such, we must affirm the circuit
court.SeeB & D Contractors, Inc. v. Arwin Window Sys., Inc., 2006 WI
App 123, ¶4 n.3, 294 Wis. 2d 378, 718 N.W.2d 256 (court of appeals may affirm
the circuit court on any ground).

¶24To the extent that Edlebeck argues that the damages flowing
from the breach of contract are set forth in his statement of damages, we
conclude there is no evidence in the record to support that assertion.The record does show that, after being given
multiple opportunities and extensions of time, Edlebeck did finally file a
statement of damages with the circuit court. However, the damages set forth in the one-page
statement appear to relate to Edlebeck’s theft-by-misrepresentation and
injury-to-business claims, rather than his breach-of-contract claim.Even if we accept that those damages are
related to Edlebeck’s failure to sell the KK Restaurant to Dimitropoulos, there
are no supporting documents to tie the alleged damages to the failed sale,[5]
and Edlebeck did not name an expert witness to tie the damages to the
sale.As such, we affirm the circuit
court.[6]

II.Professional
Negligence and Breach of Fiduciary Duty.

¶25In order to succeed on his professional-negligence and breach-of-fiduciary-duty
claims against the Sherburne Defendants, Edlebeck must demonstrate that he and
Sherburne entered into an attorney-client relationship.SeeLewandowski
v. Continental Cas. Co., 88 Wis. 2d 271, 277, 276 N.W.2d 284 (1979)
(professional negligence or legal malpractice); Zastrow v. Journal Commc’ns, Inc.,
2006 WI 72, ¶¶27, 32, 291 Wis. 2d 426, 718 N.W.2d 51 (breach of fiduciary
duty).The circuit court concluded that
Edlebeck failed to produce any evidence from which a reasonable factfinder
could conclude that such a relationship with Sherburne had been established,
and therefore, dismissed both claims.We
agree with the circuit court’s assessment of the evidence.

¶26Edlebeck had the initial burden of proving the existence of an
attorney-client relationship. SeeSecurity Bank v. Klicker, 142 Wis. 2d
289, 295, 418 N.W.2d 27 (Ct. App. 1987). We apply the rules of contract formation when
determining whether an attorney-client relationship exists.Id.However, a formal agreement is not essential. Id.An attorney-client “relationship may be
implied from the words and actions of the parties.” Id.Whether an attorney-client relationship exists
rests on the intent of the parties and presents a question of fact for the
factfinder. Marten Transp. Ltd. v. Hartford
Specialty Co., 194 Wis. 2d 1, 14, 533 N.W.2d 452 (1995).Here, the parties agree that there was no
contract expressly stating that Sherburne represented Edlebeck in the real
estate transaction with Bouraxis.[7]As such, we turn to the question of whether
Edlebeck set forth facts on summary judgment from which such a relationship
could be reasonably inferred.

¶27In support of Edlebeck’s argument that he entered into an
attorney-client relationship with Sherburne, Edlebeck relies on the following
undisputed facts: (1) that Edlebeck
and Bouraxis entered into an agreement whereby Edlebeck would pay one-half of
Sherburne’s attorney’s fees; and (2) that none of the correspondence that
Edlebeck received from Sherburne after agreeing with Bouraxis to pay one-half
of Sherburne’s attorney’s fees included a request to “review and discuss[] with
your counsel.”We conclude that a
reasonable factfinder could not conclude that Edlebeck and Sherburne entered
into an attorney-client relationship based on that evidence.

¶28To begin, the agreement between Edlebeck and Bouraxis to split
Sherburne’s attorney’s fees was simply that: an agreement to split attorney’s fees.Edlebeck and Bouraxis never agreed that
Sherburne would represent Edlebeck, nor could they have reached such an
agreement.An agreement that Sherburne
was representing Edlebeck would necessarily have to be between Edlebeck and
Sherburne, and Edlebeck admits that he never asked Sherburne to represent him
and that Sherburne never discussed the possibility of representation with
Edlebeck.[8]

¶29Furthermore, we are unpersuaded by Edlebeck’s argument that a
reasonable factfinder could infer an attorney-client relationship between
Edlebeck and Sherburne from Sherburne’s failure to reference Edlebeck’s counsel
in correspondence following Edlebeck’s attorney-fee agreement with
Bouraxis.Edlebeck correctly notes that
when he received the first draft of the purchase agreement in May 2005, prior
to Edlebeck’s agreement with Bouraxis to split Sherburne’s attorney’s fees,
Sherburne included a note on the cover page that the purchase agreement was
“[a]ttached for your review and discussion with your counsel.”Future drafts, sent after Edlebeck and
Bouraxis agreed to split Sherburne’s attorney’s fees, failed to include this
message.From this, Edlebeck argues that
a reasonable factfinder could infer that Sherburne was representing him.We conclude that such an assumption is
unreasonable.The mere absence of that message,
without more, cannot imply the existence of an attorney-client relationship.

¶30Simply put, a reasonable factfinder could not infer an
attorney-client relationship between Edlebeck and Sherburne based on these
facts.Edlebeck admits in his brief that
the two never discussed any such relationship; that Sherburne ignored his
September 2007 letter instructing Sherburne to make changes in the purchase agreement
favorable to Edlebeck; that the revisions to the purchase agreement that
Sherburne sent to Edlebeck in August 2007 included material changes favorable
to Bouraxis, including converting the transaction into a land contract, which
Sherburne did not explain or point out to Edlebeck; and that Sherburne never
sent Edlebeck a final draft of the offer to purchase and other closing
documents before closing.Given those
facts, it would be contrary to the law to infer that Edlebeck and Sherburne had
entered into an attorney-client relationship.As such, we affirm the circuit court’s decision to dismiss the
professional-negligence and breach-of-fiduciary-duty claims against the
Sherburne Defendants, which were reliant on the existence of such a
relationship.[9]

III.Theft
by Misrepresentation, Conspiracy to Commit Fraud, and Injury to Business.

¶31The Bouraxis Defendants argue that Edlebeck’s remaining claims,
to wit, his claims for theft by misrepresentation, conspiracy to commit fraud,
and injury to business, are inadequately briefed and ask that we decline to
review them.SeePettit, 171 Wis. 2d at 646.Edlebeck fails to respond to this argument in his reply brief, and
therefore, it is deemed admitted.SeeCharolais Breeding Ranches, 90 Wis.
2d at 109.As such, we affirm.

¶32However, even if Edlebeck had addressed the argument in his
reply brief, we would have concluded that his remaining claims were
inadequately briefed.Edlebeck spent
only approximately three pages of text arguing that all three of these claims
were not properly disposed of on summary judgment.In these pages, he does not explain the bases
of his claims or set forth the elements that he must prove to succeed.Furthermore, he cites to only two cases in
support of the misrepresentation claim, and to no cases in support of his
conspiracy and injury-to-business claims.To the extent that Edlebeck attempted to argue the merits of these
claims earlier in his brief, intermingled with his other claims, we determine
that such arguments were incomprehensible.In sum, we decline to address such poorly briefed arguments, seePettit, 171 Wis. 2d at 646, and
affirm the circuit court.

By the Court.—Judgments
affirmed.

Not
recommended for publication in the official reports.

[1] While
both Charles and Sharon Edlebeck filed suit, the primary actor in the real
estate transaction was Charles.To avoid
confusion, we refer only to Charles in the remainder of the decision.

[2] The
Honorable Timothy G. Dugan presided over the case and ruled on the summary
judgment motions upon which this appeal rests; however, the case was
transferred after the final summary judgment hearing relevant to this appeal,
and the Honorable Dominic Amato signed the final judgments.

[3] This
case was decided on summary judgment.The facts set forth in the background section are those that are
undisputed by the parties unless otherwise noted.

We also note with displeasure that the statement of
facts and statement of the case in Edlebeck’s brief, while lengthy at nearly
nineteen pages, contain only minimal citations to the record, despite the
requirements of Wis. Stat. Rule
809.19 (2009-10).Given the complex
procedural history of this case, which resulted, in many instances, from
Edlebeck’s counsel’s inattention to detail and failure to abide by the circuit
court’s scheduling orders, the lack of citation was particularly frustrating to
this court.However, because we are
affirming the circuit court, we accept Edlebeck’s undisputed assertions of what
the record contains as true for the purposes of this appeal.

All references to the Wisconsin Statutes are to the
2009-10 version unless otherwise noted.

[4] Judge
Amato decided the motion for summary judgment regarding the Wis. Stat. § 100.18 claim and
signed the resulting judgment.Edlebeck
has admittedly abandoned that claim on appeal.

[5] In
our search of the record, we have located some payroll records for the
restaurants; “a breakdown of accounts payable for each store and itemization of
the closing costs”; and “tax returns for the Omega Burger KK restaurant.”If Edlebeck believes his statement of damages
is supported by these documents, we disagree.We see no obvious correlation between these documents and the damages in
his statement, nor do we see any obvious correlation between these documents
and any damages that may have resulted from the failure to sell the KK
Restaurant to Dimitropoulos.

[6] We
also note that the damages set forth in Edlebeck’s statement of damages are
different than the damages he alleges in his summary judgment motion, which are
different still from the damages he sets forth in his affidavit filed with the
circuit court.Edlebeck does not explain
the differences in each of these damage claims.

[7] Edlebeck
attempts to shift the burden of proof onto the Sherburne Defendants,
stating:“More importantly, the [sic] is
no record that the Sherburne Defendants sent Edlebeck a letter or verbally
stating [sic] that even though Edlebeck was paying one-half of the attorney
fees charged by the Sherburne Defendants for drafting the documents, the
Sherburne Defendants were not representing Edlebeck in this transaction.”The Sherburne Defendants are under no
obligation to produce evidence demonstrating that no attorney-client
relationship existed.Edlebeck bears the
burden of producing some evidence that it did.SeeSecurity Bank v. Klicker,
142 Wis. 2d 289, 295, 418 N.W.2d 27 (Ct. App. 1987).

[8] The
Sherburne Defendants also argue that it is common in large real estate
transactions for the buyer to pay the lender’s attorney’s fees with no
expectation of representation.Because
here, Bouraxis was acting as the lender (as well as the seller), and because
Edlebeck is a sophisticated businessman who has engaged in many real estate
transactions, the Sherburne Defendants argue that it was unreasonable for
Edlebeck to believe Sherburne was representing him based on the agreement with
Bouraxis to pay one-half of Sherburne’s attorney’s fees.Edlebeck argues that this real estate
transaction was unique because Bouraxis was acting as both the lender and the
seller.We need not delve into the
particulars of the parties’ arguments because we conclude that even if we
accept Edlebeck’s position that this was not a traditional real estate
transaction, it is still unreasonable to infer an attorney-client relationship
between Edlebeck and Sherburne based upon these facts.